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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British American Tobacco (UK) Ltd & Ors, R (on the application of) v Secretary of State for Health [2018] EWHC 3586 (Admin) (20 December 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3586.html Cite as: [2018] EWHC 3586 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN | ||
| on the application of | Case No. CO/2322/2015 | |
(1) BRITISH AMERICAN TOBACCO (UK) LIMITED |
||
(2) BRITISH AMERICAN TOBACCO (BRANDS) INC. |
||
(3) BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED |
First Claimants | |
| - and- | ||
| SECRETARY OF STATE FOR HEALTH | Defendant | |
AND BETWEEN: |
Case No. CO/2323/2015 | |
THE QUEEN |
||
| on the application of | ||
| (1) PHILIP MORRIS BRANDS SÀRL | ||
| (2) PHILIP MORRIS PRODUCTS SA | ||
| (3) PHILIP MORRIS LIMITED | Second Claimants | |
| - and- | ||
| SECRETARY OF STATE FOR HEALTH | Defendant | |
AND BETWEEN: |
Case No. CO/2352/2015 | |
| THE QUEEN | ||
| on the application of | ||
| (1) JT INTERNATIONAL SA | ||
| (2) GALLAHER LIMITED | Third Claimants | |
| - and- | ||
| SECRETARY OF STATE FOR HEALTH | Defendant | |
AND BETWEEN: |
Case No. CO/2601/2015 | |
| THE QUEEN | ||
| on the application of | ||
IMPERIAL TOBACCO LIMITED |
Fourth Claimant | |
| - and- | ||
| SECRETARY OF STATE FOR HEALTH | Defendant | |
| ACTION ON SMOKING AND HEALTH | Intervener | |
The following proceedings have also been linked to the above proceedings: |
||
Case No.: CO/2706/2015 |
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Case Name: The Queen (on the application of TANN UK Limited, TANNPAPIER GmbH, Benkert UK Limited, Deutsche Benkert GmbH & Co KG) v SECRETARY OF STATE FOR HEALTH |
____________________
Crown Copyright ©
Lord Justice Green:
A. Application under CPR 5.4C(2) for disclosure of court documents to a third party
tobacco
industry and by certain manufacturers of
tobacco
papers. Judgment was given on 19th May 2015: cf
British
American
Tobacco
et Ors v Secretary of State for Health (Action on smoking and health, intervening) [2015] EWHC 1169 ("the Judgment"). Appeals by the claimants were subsequently rejected by the Court of Appeal. Permission to appeal to the Supreme Court was refused.
tobacco
products. Paragraphs 1 and 2 of the Judgment described the issue in the following way:
"1. These applications for judicial review are brought by manufacturers who represent the major part of the world's supply oftobacco
products. Legislation was enacted by Parliament which conferred upon the Secretary of State the power to lay before Parliament, for its consideration and promulgation, regulations which restrict the ability of the
tobacco
companies to advertise their brands on
tobacco
packaging or upon
tobacco
products themselves. Parliament duly promulgated The Standardised Packaging of
Tobacco
Products Regulations 2015 ("the Regulations"). These specified the 20th May 2016 as the day upon which they became effective. The Claimants challenge the Regulations as unlawful under international law, EU law and domestic common law.
2. The decision by Parliament to introduce the Regulations was in large measure in furtherance of the policy laid down by the World Health Organisation (WHO) in a singular treaty of 2004, the Framework Convention onTobacco
Control ("FCTC"). This is one of the most widely endorsed treaties in the history of the UN. In this convention the WHO has laid down a series of control measures some of which are said to be mandatory and a further series of measures which contracting states are encouraged to adopt, one of which is a prohibition on advertising on packaging and upon
tobacco
products. This latter measure is known as "standardised packaging". At base it involves a substantial limitation being imposed upon the ability of manufacturers to advertise or place branding upon the outer packaging or the
tobacco
product itself. The Regulations do not however involve all
tobacco
products being sold in a homogeneous, undifferentiated manner. The manufacturers can still place the brand name and variant name upon the box and in this way they can still communicate their identities to consumers and differentiate themselves from their competitors. But the manner in which the name and brand may be used is highly regulated in order, in effect, to strip away as much of the attractiveness of the branding or advertising as possible."
tobacco
in the context of an argument about proportionality. A central plank of the Claimants case was that, according to their economic analysis, the effect of introducing restrictions on packaging design would be counterproductive and would, in fact, lead to an increase in consumption not a decrease. The Defendant adduced expert evidence expressing a contrary view and also attacking the claimant's evidence upon the basis that if failed to meet internationally recognised best practice for expert evidence.
Tobacco
Free Kids" ("CTFK") of which he is Associate Director. In the application disclosure is sought of Court documents. I set out the details of the documents sought below. CTFK is a Non-Governmental Organisation ("NGO") based in Washington DC that promotes
tobacco
control measures and legislation worldwide in particular in lower and middle-income countries.
tobacco
products in states around the world where CTFK works with governments and other NGOs. This included states within the EU. The application states that disclosure of the documents would aid the understanding of the legal and factual issues surrounding the question of standardised packaging and would promote debate.
tobacco
companies but also the Defendant Secretary of State. In particular the application seeks: (i) the expert reports of Professor Mulligan and Professor Bezant filed by the Claimant, Philip Morris; (ii) the expert reports of Professor Hammond and Professor Chaloupka filed by the Secretary of State; (iii) various letters sent by the World Health Organisation ("WHO") and secretariat of the Framework Convention on
Tobacco
Control ("FCTC") to the Under Secretary for Public Health together with the amicus brief of WHO and FCTC sent to the WHO dispute settlement procedure; (iv) the witness statements of Mr Mean and Mr Derbyshire filed by the Defendant; (v) the witness statement of the Chief Medical Officer in the United Kingdom; (vi) the witness statement of Mr Martin Bowles filed by the Defendant; and (vii) the full detailed submissions to Ministers of December 2014 (prepared by civil servants following a consultation on the proposed new measures).
B. The power of the Court to order disclosure
"(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person."
"(2) An application for an order under rule 5.4C(4) or for permission to obtain a copy of a document under rule 5.4B or rule 5.4C (except an application for permission under rule 5.4C(6)) may be made without notice, but the court may direct notice to be given to any person who would be affected by its decision."
"The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied."
Later at paragraph [85] the following was stated:
"In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others."
"… essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature. The principal documents which are likely to fall within that description are those set out in paragraph 4.2A of CPR 5APD.4, together with "communication between the court and a party or another person", as CPR 5.4C(2) makes clear. In some cases there will documents held by the court office additional to those listed in paragraph 4.2A of CPR 5APD.4, but they will only be "records of the court" if they are of an analogous nature."
"Since the date when Lord Scarman expressed doubt in Home Office v. Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.
In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern. In some cases (especially cases of obvious and genuine public interest) the judge may in the interests of open justice permit or even require a fuller oral opening, and fuller reading of crucial documents, than would be necessary if economy and efficiency were the only considerations. In all cases the judge's judgment (delivered orally in open court, or handed down in open court in written form with copies available for the press and public) should provide a coherent summary of the issues, the evidence and the reasons for the decision.
Nevertheless the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgment of Potter L.J. in GIO Personal Investment Services Ltd v. Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1991] 1 W.L.R. 984. As the court's practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman's warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensibly in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain."
"I would accordingly summarise the current position on the authorities as follows:
(1) There is no inherent jurisdiction to allow non-parties inspection of:
(i) trial bundles;
(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts' reports or in open court simply on the basis that they have been so referred to.
(2) There is inherent jurisdiction to allow non-parties inspection of:
(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.
(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.
(iii) Skeleton arguments/written submissions or similar advocate's documents read by the court provided that there is an effective public hearing in which the documents are deployed.
(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice."
113. The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c). There may also be additional compliance costs which the non-party should bear, particularly if there has been intervening delay."
C. Submissions of the parties
Tobacco
companies and the manufacturers of
tobacco
papers, the Claimants in the proceedings, did not oppose the application. They did not make any substantive submissions.
tobacco
industry as significant in that there was a risk that many other countries might follow the lead of the UK Government and this encouraged the
tobacco
industry to invest in challenging the legislation in the UK. Second, my judgment, and its endorsement by the Court of Appeal subsequently, has provided comfort to Governments around the world considering adopting the same or similar legislation on plain packaging. Third, plain packaging legislation is now being introduced around the world in the Americas, Africa, Asia and the Western Pacific. As of the date of the ASH submissions plain packaging legislation existed in 8 jurisdictions and was under consideration in a further 24. Fourth, the
tobacco
industry was still mounting campaigns against plain packaging, including in the UK, notwithstanding the legal position in the UK. The industry had for instance cited statistics produced by academics at University College London (UCL) which purported to show that smoking had increased since the introduction of the plain packaging rules. ASH submitted however that even the academics who generated the data were saying that it had been misrepresented. Fifth, ASH contended that the reason that the industry was still advancing such arguments and evidence was to seek to deter third countries from introducing plain packaging legislation and there was a concern (by the anti-smoking lobby) that smaller and middle-income countries might be chary of taking on the
tobacco
industry in litigation. Sixth, given this context ASH submitted that the arguments that were rejected in the UK by the High Court and Court of Appeal were still being advanced elsewhere in the world. Seventh, in these circumstances ASH argued that in relation to the expert evidence sought by the applicant it was important that it should be available in the public domain so that it could (variously) be assessed against criticisms made of it in the Judgment or (conversely) against the reasons why it was accepted. Either way, it would assist other governments to understand the full context to this evidence and other evidence of a similar nature.
tobacco
industry (which I have not seen) I am, of course, not expressing any view about that evidence. The relevance of the point lies in ASH's contention that transparency about the material adduced before the High Court in the UK should be placed into the public domain so that all concerned can view it and form their own conclusions about the evidence and this would thereby provide context to new and analogous evidence being adduced by the
tobacco
sector.
D. The principle of open justice as applied to documents relied upon in, and by, the Court
British
Broadcasting Corporation (Scotland) [2015] UKSC 25 ("A v BBC(S)") Lord Reed posed the rhetorical question - "Who is to guard the guardians?" He answered (at paragraph [23]):
"In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny"
"170. The open justice principle includes the obligation to hold hearings in open court to which the public has access (see Attorney General v Leveller Magazine Ltd [1979] AC 440 , at 450, per Lord Diplock); the right of the press and others to report on legal proceedings (see Khuja v Times Newspapers [2017] 3 WLR 351 at [16], per Lord Sumption); the placing into the public domain of judicial decisions (see R (Mohammed) v Foreign Secretary [2011] QB 218 , at [37] - [41], per Lord Judge CJ and [189], per Lord Neuberger MR), even in cases where there has been a closed material procedure; and, the obligation to ensure that evidence or information communicated to a court is presumptively available to the public (see R (Guardian News & Media) v City of Westminster Magistrates Court [2013] QB 618 )."
"Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest".
(Emphasis added)
"62. Some indication of the balance to be struck between disclosure and non-disclosure can be seen from the tenor of the judgments in Kennedy. In that case the Supreme Court was concerned with inquiries conducted by the Charity Commission and their relationship with judicial or quasi-judicial proceedings. It was, as Mr Peretz correctly pointed out, in this particular context that the Court emphasised the high importance attached to open justice and to transparency. The present case involves legal process but at a much earlier stage. Investigations conducted by HMRC are equivalent to police investigation which might or might not lead to a prosecution. They are operations which are necessary precursors to court proceedings. This has to be borne in mind when considering the implications of Kennedy. Different considerations apply. When matters come to court there is a powerful presumption that they should be conducted in public and this necessarily impacts upon the availability of documents used in those proceedings. However, before the proceedings come to court, whilst investigations are ongoing, the position is not so clear cut. The police will necessarily need to keep some facts secret: the fact that they intend to conduct a search of a premises; when that will be; the address, etc. Months later, when the prosecution is underway, those same facts may well have lost any vestige of confidentiality or secrecy they ever had. They will be facts referred to quite openly in Court."
"76. The position of HMRC in the Decision letter that legitimate NGOs can submit dossiers by way of complaint but thereafter are entitled to no information by way of update is not a rational one. Pressure groups share many similarities with the press. They can act as guardians of the public conscience. As with the press their very existence and the pressure they bring to bear on particular issues and upon those who are responsible for governance of those issues, is one of the significant checks and balances in a democratic society. They have, therefore, a significant role to play."
British
subjects to the USA. At paragraph [77] the Court of Appeal set out a presumption or strong default position in favour of courts (positively) assisting disclosure:
"77. Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise. The reasons are not difficult to state. The way in which the justice system addresses international corruption and the operation of the Extradition Act are matters of public interest about which it is right that the public should be informed. The public is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general or abstract discussion."
E. Conclusion
tobacco
industry in the UK and in other jurisdictions, according to ASH; (v) conclusions arrived at in the Judgment about this evidence are better understood with the actual evidence itself being available in the public domain; (vi) wider transparency might thereby assist other interested persons, countries and courts to form their own views about the merits or otherwise of the competing arguments; (vii), there were no grounds cited at the time of the litigation to justify preserving the secrecy of the documents in issue and none arise now: (viii) it is not relevant that the litigation is at a end.
tobacco
industry: See for details the Judgment at paragraphs [151]-[175] and [331]-[332].
tobacco
industry of relevant health information, ordered the disclosure into the public domain of vast amounts of internal
tobacco industry documents. All of this (exceeding circa 50 million documents) is now searchable online facilitated by means of a practical guide produced for that purpose by the WHO: See Judgment at paragraphs [19] and [300].
F. Post-script: Delay in the addressing of the application